(30 a) The wife cannot recover damages for beating her husband, for she hath no separate interest in anything duriug her coverture, page 143.

The married women's acts have changed this rule, not so much by any express provision as by its spirit in giving to the wife distinct personality for most purposes, and allowed a wife to recover damages in many cases where she is damnified through him. (Davies v. Soiomon, Law R. 7 Q. B. 112.) So, also, by the civil damage acts, when she is injured in person, property, or means of support by his drunkenness, she may sue the one who furnishes the liquor. (Meed v. Stratton, 87 N. Y. 493: 41 Am. Rep. 386; and many other cases.)

The change has even allowed her, as held in some states, to sue for the loss of conjugal society when he is seduced or abducted by designing females. This is a direct negation of Blackstone's statement of her inferiority. "The inferior can suffer no loss or injury." (Supra; Westlake v. Westlake, 34 Ohio St. 621; 32 Am. Rep. 397.)

CHAPTER THE NINTH.

OF INJURIES TO PERSONAL PROPERTY.

In the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And here again we must follow our former division of property into personal and real: personal, which consists in goods, money, and all other movable chattels, and things thereunto incident; a property, which may attend a man's person wherever he goes, and from thence receives it's denomination,* and real property, which consists of such things as are permanent, fixed, and immovable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.

First then we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only.b

I. The rights of personal property in possession are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

a See book II. ch. 2.

b Ibid. ch. 25.

*See note 2 to book 1, page 334, as to the reason of this denomina

[145] 1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows as a necessary consequence, that when I once have gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them is guilty of a transgression against the law of society, which is a kind of secondary law of nature.* For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simpleminded part of mankind (which is by far the most numerous division) could never be secure of their possessions.

The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin† an institution, which the mirror ascribes to Glanvil, chief justice to king Henry the second. This obtains only in one instance of an unlawful taking, that of a wrongful distress ‡ [see note 31, page 230]; and this and the action of detinue (of which I shall presently say more) are almost the only actions, in c c. 2. 1 6.

*Cited, 18 N. J. L. 357.

+ Cited, 43 N. H. 38; 51 Mich. 413; 29 N. J. L. 197.

Cited and criticised, 21 N. J. L. 420; 7 Johns. 143; 3 Mo. 472; 26 Am. Dec. 685; 20 Johns. 469; 11 Am. Dec. 304; 11 Serg. & R. 132; 55 Pa. St. 177; 93 Am. Dec. 740; 8 Rich. 111; 3 Rand. 451; Minor, 277.

which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable,* that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that "lex neminem cogit ad vana, seu impossibilia," it therefore [146] contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distreinor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distreinor has a remedy in damages, either by writ of rescous, in case they were going to the pound, or by writ de parco fracto, or poundbreach, in case they were actually impounded.† He may also at his option bring an action on the case for this injury and shall therein, if the distress were taken for rent, recover treble damages. The term, rescous, is likewise applied to the forcible delivery of a defendant, when arrested from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous: or, if the sheriff makes a return of such rescous to the court out of which the process issued, the rescuer will be punished by attachment.h

i

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a redelivery of the pledge, or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him: after which the distreinor may keep it, 'till tender made of sufficient amends: but must then redeliver it to the owner. And formerly, when the party distreined upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias;1 which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards [147] to do justice in respect of the matter in dispute in his own county court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage. For which reason the statute of Marlbridge1 directs, that (without suing a writ out of the chancery) the sheriff immediately upon 7 plaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1 P. & M. c. 12. that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to the sheriff or one of his said deputies, security is to be given, in pursuance of the statute of Westm. 2. 13 Edw. I. c. 2. 1. That the party replevying will pursue his action against the distreinor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right be determined against him, he will return the distress again; for which pur

i See pag. 13. j Co. Litt. 145. k 8 Rep. 147.

1 F. N. B. 68.

3 BLACKST.-18.

m

2 Inst. 139.

n 52 IIen. III. c. 21.

7 Previously, "complaint."